- (1.) KAMLESHWAR Nath, J. Appellant, Smt. Shanti Devi, has been convicted under Section 302, I. P. C. and Section 309, 1. P. C. and sentenced to undergo imprisonment for life and for three months' rigorous imprisonment respectively. Her husband, Babu Ram, has been acquitted for the offence under Section 309 read with Section 109, I. P. C.
(2.) SMT. Shanti Devi, the appellant, aged about 30 years, is the wife of Babu Ram, a junior Engineer of P. W. D. who resided in quarter No. 175, I. T. I. Gora Bazar Colony, Rae Bareli. At the time of the commission of the offence on 7-3-1 982, the couple had a daughter, aged 9 years, and 2 sons aged 6 and I years. On that day the lady went along with the three children, through the agricultural areas around village Greef Saheb ka Purwa, P. S. Kotwali, district Rae Bareli, and reached a well situated in the field of Raghubir (P. W. 1 ). She threw the daughter in the well, and when the elder son cried, she picked the two sons and jumped into the well. Raghubir and others, working in the neighbouring fields, rushed to the well. They rescued the lady, and extracted the bodies of the two eider children, who had drowned the body of the youngest child could not be extracted at that time. It was found out later. On being rescued, she was questioned by Raghubir and others. She is to have given out that her husband, i. e. , Babu Ram, has illicit relations with another woman and used to go to Luck now daily in connection with his employ-lit: returning in the evening, but on that day while leaving for Lucknow he had arned Smt. Shanti Devi not show her face to him. Having got fed up with that behaviour of her husband, she considered it better to end her and her children's jives, and for that reason she jumped into the well. The usual formalities of recording the F. I. R. making the investigation post-mortern examination, recording of the statements of the witnesses under Section 161, Cr. P. C, and the filing of the charge-sheet was done and the lady was put up for trial for committing murder, and for attempting to commit suicide. Her husband, Babu Ram, was also put up for trial for abetting the commission of offence of suicide by the lady. Both pleaded not guilty. Since Babu Ram was acquitted, nothing need be said about him. 7. The lady, however, came out with a story under Section 313, Cr. P. C. that she and the children had been pushed into the well by another lady, whose particulars she could not give. Nevertheless, she admitted that on being rescued from the well and on being questioned by the prosecution witnesses, she had stated that very morning her husband had said that when he would return in the evening, then she must not appear before him. She also admitted that inter se relation between her and her husband were not good, and that the husband lacked fidelity for her, and was carrying on illicit relations with other ladies. The prosecution produced witnesses who spoke about the lady throwing the children into the well, and herself jumping into the well, and of the death of the three children, and of her being extracted from the well. The accused did not examine any witness in defence. Learned Sessions Judge found that the lady had committed murder of her three children, and had also attempted to commit suicide, and therefore, con- victed and sentenced her as mentioned above. This appeal has been filed through the Superintendent of Jail concern ed. The appellant did not appoint any lawyer to conduct the appeal. This Court appointed Sri fmtiaz Murtuza to be the amicus curiae for her. We have heard Sri Imtiaz Murtuza as also the learned Assistant Government Advocate, and have gone through the record. 13. There is no substance in the statement under Section 313, Cr. P. C. that the appellant and the children had been thrown into the well by some other lady, because there is overwhelming eye-witness account that it is she who threw the elder child, and then jumped into the well along with the two younger children. Raghubir (P. W. 1) and other witnesses have spoken about it. They are strangers to her and indeed they have given reliable evidence of the statement made by her, immediately after she was rescued from the well, indicating that she had jumped into the well along with the children. All the three children died on account of drowning, also admits of no doubt the post-mortem result and the medical evidence prove it beyond any doubt. The only question which Sri Imtiaz Murtuza has canvassed before us is that the mental state of the lady was such as could drive her to jump into the well with the children without intending to cause their death, believing that that was the only right thing which she ought to do in the circumstances of the strained relations with the husband, and the warning last given by him while leaving for his job in Lucknow. The crux of the argument is that even though the offence committed by the appellant is culpable homicide, it does not amount to murder and since she cannot be attributed an intention of causing death or of an intention of causing such bodily injury as is likely to cause death, her act would fall within the scope of the second paragraph of Section 304, I. P. C. and not under Section 302, l. P. C. The exact nature of the evidence in this regard needs to be closely appre- ciated, P. W. 8 Ram Das Srivastava, a Forest Inspector, residing in the house just opposite the house of Snit. Shanti Devi and Babu Ram, stated that he had often heard the grievance, and the prevalent rumour, that Babu Ram, used to call various women to his quarter. Mohd. Asl. m (P. W. 4), an Assistant Ins- pector in District Magistrate's office, residing in the same colony, 50 steps away, also stated that he had heard that Babu Ram had relations with some woman other than his wife. He added that on the day of occurrence, at about 6. 30 a. m. when in the course of his walk he reached near the appellant's quarter, he heard shouts of quarrel from the quarter. He said that a male voice, which could only be voice of Babu Ram, was saying that when he world return home in the even- ing then he must not see her face. It is interesting that in his statement under Section 161, Cr. P. C. he had clearly stated that it was Babu Ram's voice which he recognized. Apparently, the witness tried to talk with some reservation in court. However, he added that in the same evening he learnt that Babu Ram's wife jumped into the well along with the children. The prosecution has not produced any direct evidence to show that Smt. Shanti Devi had any intention of committing the murder of her children '. here is no indication that she had any motive to do so. Otherwise than her own mental set up and psychological pressure. The best evidence on the subject is the statement of Smt. Shanti Devi herself, given to the prosecution witnesses, as soon as she was rescued from the well. The person who rescued her from the well is Raghubir (P. W. 1 ). He stated that he questioned Smt. Shanti Devi about the reason of her jumping into the wall, whereupon she stated that her husband had told her that he was going to Lucknow, and that on return she must not be seen, that he locked the: house and carried away the key, and that she might go away wherever she wanted go. Ram Lal (P. W. 2) stated that the lady had said that her husband did not love her, gave her a beating. And went away on his job saying that when he returned home in the evening he should not see her face Champu (P. W. 3) stated that the lady told them that often there used to be quarrels between her and her husband, that on that day the husband had told her to leave the home and go away somewhere with the children, otherwise on return he would kill them, and that on return home she must not appear before him. The witness added that Smt. Shanti Devi said that for that reason she jumped, along with the children, into the well. The statement of Raghubir (P. W 1) appears to have been challenged before the lower court on the ground that he had not spoken in his statement, under Section 161, Cr. P. C. , abut Babu Ram locking the house and carrying away the key. Similarly, the statement of Champu (P. W. 3) appears to have been challenged on the ground that he had not stated, under Section 161, Cr. P. C. that Babu Ram had asked Smt. Shanti Devi to take away the children otherwise he would kill them on return from duty in the evening. These omissions are not material because in her statement under Section 313, Cr. P. C. Smt. Shanti Devi ikis spoken about Babu Ra- locking the house and carrying the key. 20. A careful appreciation of these aspects of the evidence leave no man ner of doubt that the relations between Smt. Shanti Devi with her husband, Babu Ram, co-accused, were badly strained, that Babu Ram did not want her to stay a ay longer at his house, that Babu Ram had relations with some woman which was the foundation of the strained relations of the couple, and that on that particular date the husband had told Smt. Shanti Devi to go away from the house where ever she liked, and not to show her face in the evening when he would return from the office. He might have locked the house and carried away the key. The evidence does not show that there was only other adult member in the family to look after the children in the absence of Smt. Shanti Devi. It is obvious that in these circumstances the lady must have been in an agitated state of mind. The offence is said to have been committed at about 11 a. m. , which, apparently, is shortly after the husband must have left for his job. The learned Additional Sessions Judge recorded his finding on the evidence as follows : - (In para 21 ). Her firm conviction about her husband leading a dissolute life and her felling of choking and deadening negligence pestered by her husband towards her, were very likely to push her up to the alley of her life from where there was no return. Smt. Shanti Davi did not seem to drag any further the carriage of her drab and doleful life, and finally set her foot on the final path of her life, under this circumstance she had taken a jump in the well to commit suicide and to kill her children. (In para 29 ). 4iwhether her reading was correct or wrong, but she be lieved ia the preter-nuptial way of life of her husband who has been neglecting her and her kids. Smt. Shanti Devi represented that like of depressed and dejected ladies. She was not only that, but some thing more. She went to the extent of bringing an end to her own life. Such an abnormal psychosis in abnormal by the persons of abnormal psychosis in abnormal circumstances. Once she decided to finish her life to swim across her mental agony, she decided not to leave her adolescent children to live the life of orphans. (In para 30 ). From the evidence and circumstances as considered above, it is established beyond all reasonable doubts that in the state of extreme despondency and dejection Smt. Shanti Devi walked upto the well with her clear intention to commit suicide and also kill her children. She intentionally jumped in the well with her two kids in her lap after pushing there in her daughter Km. Rita. She is, therefore, guilty of the offence punishable under Sections 302 and 309, l. . P. . C. 21. Bearing in mind the evidence which is on record, there is some over statement in the findings of the learned Additional Sessions Judge, for example, he spoke of Babu Ram's choking and deadening negligence of herself and the children, of which there is no evidence. The language employed is also pedantic, but the basic features of the findings are supported by the evidence, namely, that the husband had extra-marital relations, that she had been asked by her husband to go away and not to show her face, and consequently she must have had an abnormal mental state of agony and desperation, the only way of relief from which, could be to end her and her children's life. But the further inference of the learned Additional Sessions Judge that in those circumstances that Smt. Shanti Devi must have intended to commit the murder of the children is not correct in law. The very findings reveal that the lady's capacity for reason got impaired before she threw the children in the well and herself jumped in. The following observa tions of our High Court in the case of Emperor v. Smt. Dhirajia, AIR 1940 All 486 at page 488 throw the correct light on such situation : In order to possess and for man intention, there must be a capacity for reason. As when by some extraneous force, the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. In that case, the husband did not treat his wife Smt. Dhirajia well. On the day of occurrence there was a quarrel between them, and the husband threatened to beat the wife. At dawn the wife left home with the child in arms. The husband went out in pursuit. The wife on hearing him corning, turned round n panic, ran a little distance, and jumped into a well with the child who died, while she was rescued. This Court held that the wife did so in a state of panic and terror for escaping from her husband, and ruled that intention to cause death to the child not be attributed to her. The present case is quite close to that decision. On a consideration of all the matters, it is reasonable to hold in this case that Smt. Shanti Devi's capacity for reason was ousted by her abnormal and agitated state of mind, and therefore, the capacity to form an intention to commit murder must have been unseated too. We hold that in this situation she may not have intended cause the death of the children although the act of her jumping into the well, containing water, should have been in her knowledge to be such as could result in death. As we have already mentioned, there was no motive or reason for the lady to kill the children. Perhaps, she could not bear the agony of being left high and dry by the husband, who had the audacity of turning her out of the house, of looking it on her back, and of asking her not to appear again before him. In our opinion, the case may fail within the mischief of Part II of Section 304, I. P. C. and not under Section 302, I. P. C. The commission of the offence of attempt to commit suicide is clear enough and, therefore, the conviction under Section 309, I. P. C. is correct. The lady has been in jail since immediately after the commission of the offence, and thus she has already been in jail for over six years. We think that, that should be enough period for punishment in her case for an offence under Section 304, II, I. P. C. Where the lady would go alter she is released from prison is primarily her concern, and we are not called upon to examine that question even so, we are not unaware that the State has made arrangements for the relief on the desti - tute women, e. g. , Women Homes, and, if necessary, it should be possible for the State Government to provide the required relief to her in this regard. The appeal is partly allowed, and while the conviction and sentence of appellant Smt. Shanti Devi for he offence, punishable under Section 309, I. P. C. are confirmed, the conviction, under Section 302, P. C. is converted into one under Part 11 of Section 304, I. P. C. and the sentence awarded to her is reduced to the period of imprisonment already undergone by her. The appellant shall now be released from jail, unless wanted in auv other case. The C. J. M. concerned shall report compliance promptly. Put up alter a week along with the compliance report. Appeal partly allowed. .;